We previously posted how criminal and civil cases in New York State are being impacted by Governor Andrew Cuomo’s New York State on PAUSE Executive Order. The Order mandated that only emergency petitions and new arraignments were to be heard in the New York State Courts. Recently, the courts have begun to expand the types of matters that are being heard in criminal, civil and family court cases.

Additionally, the New York State Budget was recently passed and included an expansion of the discovery and bail reform laws which adversely impact the rights of those accused of a crime. Below is a breakdown of these updates and how they may affect your individual case.

Discovery and Bail Reform Changes in Criminal Cases

On January 1, 2020, bail and discovery reform laws were passed in New York State, requiring prosecutors to provide all discovery and witness contact information in new cases within fifteen (15) days of arraignment prior to stating ready for trial. Additionally, bail was eliminated for most offenses aside from misdemeanor sex offenses, misdemeanor domestic criminal contempt, violent felony offenses (excluding Robbery in the Second Degree, Aided by Another, and Burglary in the Second Degree, Where an Individual Enters Someone’s Home), and certain non-violent felony offenses related to witness tampering, criminal contempt, and conspiracy to commit murder. However, the new budget passed in New York State expanded the list of bail eligible offenses to include:

• Criminal Possession of a Controlled Substance in the First Degree;
• Criminal Sale of a Controlled Substance in the First Degree;
• Hate Crime Assault in the Third Degree, and Hate Crime Arson in the Third Degree;
• Sex Trafficking and Sex Trafficking of a Child;
• Burglary in the Second Degree, When an Individual Enters a Dwelling;
• Certain Domestic Violence Offenses (Criminal Obstruction of Breathing or Blood Circulation, Strangulation in the Second Degree, Unlawful Imprisonment in the First Degree)
• Aggravated Vehicular Assault in the First Degree;
• Grand Larceny in the First Degree;
• Aggravated Assault on a Child Younger than Eleven Years Old;
• Endangering the Welfare of a Child When Committed by a Level Three Sex Offender;
• Money Laundering in Support of Terrorism in the Third and Fourth degree;
• Promoting an Obscene Sexual Performance by a Child;
• Any felony offense committed while serving a sentence of probation or while released to post-release supervision;
• Any felony committed by a “persistent felony offender” (https://www.nysenate.gov/legislation/laws/PEN/70.10);
• Any felony or class “A” misdemeanor involving harm to an identifiable person or property committed while charges are pending on another felony or class “A” misdemeanor involving harm to an identifiable person or property;

Also included in the bail reform changes are expanded reporting requirements to allow for a more comprehensive review of whether these laws are having a positive effect, and a more thorough analysis of racial bias within the criminal justice system.

Another significant change included in the budget in terms of criminal justice reform are amendments to the discovery law. Instead of prosecutors needing to turn evidence over to defendants within fifteen (15) days of arraignment, now prosecutors have twenty (20) days to provide discovery for a defendant who is held on bail and thirty-five (35) days for a defendant who is released at arraignment. This includes both misdemeanors and felony offenses. If the prosecution fails to meet these deadlines, they cannot state ready for trial and will be subject to sanctions.

Additionally, the law requiring the prosecution to release names of all witnesses to an incident within fifteen (15) days of arraignment has also been changed. Previously, the prosecution had to provide this information or move for a protective order detailing why the witness’s names should be withheld. Now, the burden has been shifted to defense to move for release of these names. This is why it is critical to hire an attorney that will ensure your rights are protected and leave no stone unturned while defending your case. It is crucial to speak to all witnesses in a criminal case and properly investigate the allegations brought against you. Many cases have been dismissed after witnesses recant or their story changes and this change in the law requires you to hire an attorney that can effectively argue to the court why witness information is relevant and should be turned over so they can properly investigate your charges.

Expanded Motion Practice in Criminal and Civil Cases

Governor Cuomo’s New York State on PAUSE Executive Order previously barred all motions from being filed and argued during the COVID-19 shutdown. Unless your motion was deemed an “emergency motion” (i.e. a motion for immediate release from incarceration, bail review, or an emergency protective order), it was held in abeyance through at least May 7, 2020. This was particularly troublesome, as many viable motions to dismiss in pending cases were put on hold, preventing individuals from being released from prison, seeking employment while criminal charges were pending, and having peace of mind about their pending case.

Fortunately, New York State Chief Judge Janet DiFiore recently lifted the stay on motion practice on April 30, 2020. Judge DiFiore sent a memorandum to all New York State Judges, instructing them to allow filing of new motions, responses to motions that were already filed, to hold oral arguments virtually, and to render decisions. What this means for you is if a motion was filed in your case and was impacted by this stay, the prosecutor or opposing counsel will have to respond and the motion will be heard and decided by a judge. This is an important step as we slowly return to normalcy and will result in the resolution of many pending cases. If you believe you have a viable motion in your case to be filed, an attorney at PORTALE RANDAZZO, LLP is available to discuss and can be reached at (914) 292-3557.

Civil Case Conferences

Civil cases have also resumed certain operations in cases that are pending throughout New York State. Many judges have been holding virtual settlement conferences on cases where a Note of Issue has been filed (a document signifying discovery is complete and the case is trial ready). This is an important step which will resolve the backlog of cases accumulating due to the COVID-19 shutdown and will prevent additional delays in civil cases.

Additionally, civil judges and court attorneys have been available remotely for emergency conferences in cases where there is an unresolvable discovery dispute or an issue that arises during a deposition which requires a ruling from a judge. While many aspects of civil cases are still on hold (i.e. commencement of new law suits, statute of limitations, etc.), this is an important step to reduce the inevitable delays that are being caused by the shutdown when the courts are fully reopened.

Appeals

The federal and state appellate courts throughout New York State are enacting procedures to reopen virtually. The federal appellate courts have resumed normal briefing schedules and are hearing virtual arguments on motions and appeals. The New York State appellate courts are currently enacting plans to: (1) calendar appeals and motions; (2) schedule pre-argument court conferences; (3) admit attorneys to the state bar; and (4) process attorney grievance complaints.

On April 29, 2020, the Appellate Division Second Department announced they will begin to release decisions on motions and appeals that have already been argued. Additionally, the courts are conducting virtual arguments for appeals that have already been fully submitted.

Family Court Cases

The Family Courts throughout New York State are conducting virtual proceedings on matters that have been deemed essential, which includes: (1) child protection intake cases involving removal applications; (2) newly filed juvenile delinquency intake cases involving remand placement applications, or modification of such cases; (3) emergency family offense petitions/temporary orders of protection; (4) orders to show cause; and (5) stipulations settling cases, withdrawing cases, or modifying existing orders. In response to Judge DiFiore’s memorandum on April 30, 2020, the Family Courts will also accept motions for filing, response, and decisions.

The legal team here at PORTALE RANDAZZO will continue to keep you apprised of all updates that may affect your case during the COVID-19 pandemic. As New York State slowly reopens and the courts enact procedures to recommence normal proceedings, we will continue to post updates, along with any changes in the law that may affect your case. We are working diligently to ensure our clients’ cases result in successful outcomes and are available for telephone or virtual consultations for any civil, criminal, or family court matter you may have.

At Portale Randazzo LLP, we are passionate about meeting the unique needs of our clients. If you are facing criminal charges, it is important to obtain experienced and aggressive defense services right away. We will discuss your options, investigate the situation, and use effective legal strategies as you seek a beneficial outcome. With more than 40 years of combined legal experience, our White Plains criminal defense lawyers, led by the example of Attorney Portale, will fight diligently on your behalf.

Contact us today to schedule an initial consultation.

Article written by Kenneth M. Calvey is an associate attorney with Portale Randazzo LLP and joined the firm in 2018. He focuses his practice in the area of criminal defense, zealously advocating on behalf of those that stand accused of a crime.